State v. Coma

• Decision Date: 25 August 1966
• Docket Number: No. 38407,38407
• Citation: 417 P.2d 853,69 Wn.2d 177
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Plaintiff, v. Dennis COMA, Petitioner, George F. Parks, Chairman, Harris G. Hunter, Former Chairman, H. J. Lawrence, Russell S. Gideon and Tim McCullough, Members, Washington State Board of Prison Terms and Paroles, Respondents.

Page 177

69 Wn.2d 177

417 P.2d 853

The STATE of Washington, Plaintiff, v.Dennis COMA, PetitionerGeorge F. Parks, Chairman, Harris G. Hunter, FormerChairman, H. J. Lawrence, Russell S. Gideon and Tim McCullough, Members, Washington State Board of Prison Terms and Paroles, Respondents.

No. 38407.

Supreme Court of Washington, Department 2.

Aug. 25, 1966.

Kirkwood & Burth, Jack L. Burtch, Aberdeen, for petitioner.

John J. O'Connell, Atty. Gen., Stephen C. Way, Asst. Atty. Gen., Olympia, for respondents.

FINLEY, Judge.

This petition for a writ of certiorari is based upon only one proposition of law; namely, that the Washington State Board of Prison Terms & Paroles was not required to impose a mandatory minimum sentence in the absence of a specific finding by a trial judge or a special verdict by a jury indicating that the petitioner was armed with a deadly weapon at the time of the commission of the crimes charged in the information.

The question as to the scope of the Board's authority in this instance arose out of the following sequence of events.

The petitioner, Dennis Coma, was charged on two counts of assault by information filed in superior court stating:

COUNT I.That on or about the 20th day of November 1963, in Grays Harbor County, in the State of Washington, DENNIS COMA then and there being did then and there wilfully, unlawfully and feloniously assault one Harley Hart, with a weapon or instrument likely to cause bodily harm, to-wit: With a 38 caliber revolver, by pointing the revolver at and threatening to kill the said Harley Hart.(Italics ours.)

COUNT II.That on or about the 20th day of November, 1963, in Grays Harbor County, in the State of Washington, DENNIS COMA then and there being did then and there wilfully, unlawfully and feloniously assault one Robert Irwin with a weapon or instrument likely to cause bodily harm, to-wit: With a 38 caliber revolver, by pointing the revolver at and threatening to kill the said Robert Irwin.(Italics ours.)

The charges stemmed from the following dramatic events.These occurred in the early morning of November 20, 1963, when the petitioner burst into the Hoquiam Police Station, carrying a loaded rifle, disarmed three police officers (including Harley Hart and Robert Irwin), and demanded the release of a prisoner by the name of Lee Harmon.The petitioner then discarded the rifle and, seizing Hart and Irwin's police revolvers, began cocking and uncocking the pistols in an attempt to coerce the officers into complying with his desires--which later turned out to be the shooting of the sought-after prisoner.Fortunately, the Sheriff of Grays Harbor County, Richard Simmons, was able to disarm petitioner Coma before he injured anyone.It should be noted that Sheriff Simmons' performance exemplifies the efficient, effective, and oftentimes courageous work performed, somewhat routinely, by our law enforcement officers in the line of duty, and too frequently with little or no public recognition, commendation, or praise.

The petitioner entered a plea of not guilty as to both counts mentioned above.The case was tried before a jury, which, upon evidence and testimony submitted by the state and the defendant, returned a written verdict of 'guilty as charged on both counts.'The jury was not so instructed and did not return a special verdict as to whether petitioner was armed with a deadly weapon (as defined by law) at the time of the commission of the crime.Judgment and sentence were entered by the court pursuant to the verdict, sentencing the defendant to maximum terms of confinement of not more than ten years on each count, with the sentences to be served concurrently.Although the formal or written judgment and sentence do not reflect the entry of a special verdict by the jury; nevertheless, the judgment does indicate that the defendant was found guilty by the jury 'of the crime of Second Degree Assault on Two Counts As charged in the Information.'(Italics ours.)

Subsequently, the Washington State Board of Prison Terms & Paroles, ostensibly pursuant to the provisions of RCW 9.95.040andRCW 9.95.015, fixed the minimum 'duration of confinement' of Dennis Coma at five years.This is the mandatory minimum sentence prescribed by the statute for first offenders if armed with a deadly weapon in the commission of certain offenses.It is the petitioner's contention that, absent a special verdict by judge or jury, the Board was not required or empowered to make an independent finding respecting the use of a deadly weapon; and that the Board was not required to impose the mandatory sentence of five years.

It seems reasonably apparent that the Board of Prison Terms & Paroles assumed that it was compelled to impose the mandatory minimum sentence, since the information charged commission of the crime 'with a 38 caliber revolver,' and the written verdict of the jury indicated that the petitioner was 'guilty As charged on both counts.'(Italics ours.)The problem presented by this petition to review the Board's action is one of statutory interpretation.The pertinent statute, RCW 9.95.040, reads:

Within six months after the admission of a convicted person to the penitentiary, reformatory, or such other state penal institution as may hereafter be established, the board of prison terms and paroles shall fix the duration of his confinement.The term of imprisonment so fixed shall not exceed the maximum provided by law for the offense of which he was convicted or the maximum fixed by the court where the law does not provided for a maximum term.

The following limitations are placed on the board of prison terms and paroles with regard to fixing the duration of confinement in certain cases, notwithstanding any provisions of law specifying a lesser sentence, to wit:

(1) For a person not previously convicted of a felony but armed with adeadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than five years.

(2) For a person previously convicted of a felony either in this state or elsewhere and who was armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than seven and one-half years.

The words 'deadly weapon,' as used in this section include, but are not limited to, any instrument known as a blackjack, sling shot, billy, sand club, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, and any metal pipe or bar used or intended to be used as a club, any explosive, and any weapon containing poisonous or injurious gas.(Italics ours.)

In State ex rel. Alldis v. Board of Prison Terms and Paroles, 56 Wash.2d 412, 353 P.2d 412(1960), we attributed to the Board a fact-finding investigatory power in order to give full effect to the provisions of RCW 9.95.040(1) which Then read:

(1) For a person not previously convicted of a felony but armed with a deadly weapon either at the time of the commission of his offense, Or a concealed deadly weapon at the time of his arrest, the duration of confinement shall not be fixed at less than five years.(Italics ours.)

The above italicized provisions would have been nugatory unless the Board was empowered to make its own investigation of the facts, since as a practical matter the information, verdict and judgment often would not reflect the fact that the convicted offender was armed with a deadly weapon unless that fact was an element of the crime charged.It is certainly highly probable that the record before the Board would Not reflect the presence of a concealed weapon At the time of arrest.

By Chapter 138 of the Laws of 1961the legislature amended the pertinent portion of RCW 9.95.040 to read:

(1) For a person not previously convicted of a felony but armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than five years.

Consequently, the presence of a concealed weapon at the time of arrest is no longer a basis for imposition of a mandatory minimum sentence.Thus, while our decision in Alldis was appropriate at the time, a substantial part of our reasoning therein is no longer pertinent with respect to the scope, if any, of the Board's power to make independent findings of fact.

In addition, Chapter 138, Laws of 1961, contains the following provision which is now codified as RCW 9.95.015:

Finding of fact or special verdict establishing defendant armed with deadly weapon.In every criminal case wherein conviction would require the board of prison terms and paroles to determine the duration of confinement and wherein there has been an allegation and evidence establishing that the accused was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused was armed with a deadly weapon, as defined by RCW 9.95.040, at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it finds the defendant guilty, also find a special verdict as to whether or not the defendant was armed with a deadly weapon, as defined in RCW 9.95.040, at the time of the commission of the crime.

Read literally, this statutory provision is susceptible of one or the other of two divergent interpretations.Either (1) it provides an exclusive formula or procedure for determining whether a deadly weapon was used; namely, by either a specific finding of the court or by special jury verdict; or, (2) it provides a further Aid to the Parole Board in this respect, and is simply a gloss upon or an addition to the powers attributed to the Board in Alldis, supra.Thus, by resorting solely to the words utilized in RCW 9.95.015, the meaning of the statute is dubious and unclear, and 'ambiguity' is the crucial characterization.This, of course,...